The reversal of a Trump administration rule that rolled back waterway protections is giving environmentalists new hope that a proposed strip mine near the Okefenokee Swamp and many other development plans near stream beds will no longer skirt federal regulation.
U.S. District Judge Rosemary Márquez of Arizona ruled Monday that former President Donald Trump’s decision to rewrite the federal navigable waters law poses a serious risk to the environment.
The Trump rule replaced the more expansive Obama-era environmental regulations, but for now, protections for groundwater, wetlands and streams under the Clean Water Act of 1986 will remain in place until a new rule is ready.
The U.S. Environmental Protection Agency said Monday it’s reviewing the court ruling in a case that experts predict will face an appeal. Meanwhile, the agency plans to press forward on developing a new Navigable Waters Protection Rule that its administrator says won’t be as lenient as the Trump rollback or as restrictive as the 2015 Obama administration’s Waters of the United States rule.
Marquez’s decision could eventually lead to more stringent federal reviews of hundreds of projects across the country. In calling for the remaking of the rule this year, the Biden administration officials noted that more than 300 current projects bypassed federal water regulations due to changes under the Trump administration.
Perhaps the most prominent of those proposed projects is Twin Pines Minerals’ plans to build a titanium mine on the edge of the Okefenokee National Wildlife Refuge, which now is under state environmental review. The project no longer fell under the purview of the U.S. Army Corps of Engineers under the Trump-era rule.
“For the people and wetlands of Georgia, this is a tremendous victory,” said Christian Hunt, Southeast representative at Defenders of Wildlife. “By ducking federal and scientific review, Twin Pines Minerals has cut the public out of the public process and put the Okefenokee and hundreds of acres of wetlands at risk. With this ruling, the public should be brought back in, and the project given a thorough vetting by the federal government,” Hunt continued. “There’s too much at stake.”
A court order, according to environmental advocacy groups, would provide the quickest protection for the Okefenokee, while the rulemaking process could take years. Otherwise, the last line of defense for projects like Twin Pines might be at the state level.
For now, however, the ruling is not affecting the Georgia Environmental Protection Division’s review of the Twin Pines permit mining application. Kevin Chambers, spokesman for the state’s environmental regulator, said the agency continues to analyze documents the company submitted this summer in pursuit of permits.
The company unveiled its plans more than two years ago, announcing plans to mine on more than 2,400 acres with the potential to expand to 12,000 on the edge of the swamp. Now the Alabama company is planning to conduct a 570-acre mining demonstration along Trail Ridge, a hydrological divide between the Okefenokee and St. Marys River, to show it can dig without endangering one of the Southeast’s most diverse ecosystems. There is still the potential for future operations to expand beyond the demonstration project.
Even with a larger footprint, the mining operation would be much less ambitious than one proposed by DuPont in the 1990s that public protests eventually scuttled.
Twin Pines is pursuing the mining of materials often used as the white pigment found in paint and paper found in the sand near the Okefenokee’s borders.
Environmentalists fear the mine could do irreparable harm to the south Georgia refuge that is home to more than 600 plant species as well as rare animals like indigo snakes, gopher tortoises and wood storks.
Despite the court decision, Steve Ingle, Twin Pines’ president, said the mining plans continue to follow a process filled with checks and balances.
“It’s important to remember that we submitted our initial permit application before the Trump ruling and were working to comply with the requirements as they were written at that time,” Ingle said. “We were following the directives of the U.S. Army Corps of Engineers and Georgia Environmental Protection Division and will continue to adhere to the requirements of the regulatory agencies that have review responsibilities relative to our permit applications now and in the future.”
Kelly Moser, senior attorney and leader of the Southern Environmental Law Center’s Clean Water Defense Initiative, said the Arizona district court ruling confirms her stance that the Trump administration’s revisions are unlawful and harming water quality in the country.
“The court’s decision to vacate the rule means that previous decisions under the rule — including the removal of federal clean water protections from nearly 400 acres of wetlands on Twin Pines’ proposed mining site near the Okefenokee Swamp — are vulnerable,” Moser said. “The Biden administration still must work quickly to put in place stronger clean water protections, but this decision gives us hope for our waterways and wetlands like those in jeopardy near the Okefenokee, and helping our southern communities weather increasingly intense storms and floods.”
The challenge of the Trump rule was brought by six Native American tribes that were represented by Earthjustice.
The ruling has its detractors including business and agriculture groups that prefer a Trump administration rule they say is less of a burden for landowners. They argue the Obama-era rule regulated ditches filled with water that do not qualify as navigable.
Zippy Duvall, president of the American Farm Bureau Federation, said Monday’s ruling is disappointing to farmers who view the Trump administration changes as environmentally responsible while not requiring a team of attorneys to understand.
“This ruling casts uncertainty over farmers and ranchers across the country and threatens the progress they’ve made to responsibly manage water and natural resources,” Duvall said.
“Three courts have previously refused to dismantle the (Navigable Waters Protection Rule), including last month when a federal court in South Carolina refused a similar request from plaintiff groups,” he added. “Unfortunately, this Arizona court simply accepted the plaintiffs’ assertions as true and did something that no other court has done in vacating the (rule).”
Future court cases and the language of the new rule are likely to determine how much protection is offered to millions of acres of wetlands and land with streams and creeks.
For now, environmental advocates like the Georgia Conservation Voters are celebrating this week’s court decision as a victory.
“While the ruling doesn’t go as far as restoring the Obama-era protections, this is an important step in restoring safeguards for our rivers and waters,” said the group’s executive director, Brionté McCorkle. “This will not only protect national and local treasures like the Okefenokee but ensure other polluters think twice before applying for permits.”
This story comes to GPB through a reporting partnership with Georgia Recorder.
